秦汉律所见“质钱”考辨

"Zhiqian" in the Law of Qin and Han Dynasties

关于秦汉律所见"质钱",现有的契税说与抵押(或担保)之钱说,均存在疑点,难以成立。"质"是秦汉律中债的一种担保方式。以《说文》"以物质钱"的解释为据,并参照文献所见南北朝时期有关质钱的记载,可以推测,秦汉律所见"质钱"是因官府(债权人)占有民(债务人)之物以保证其借贷而产生的,是官府在借贷期限届满时所收到的、由民交来的款项(本钱与子钱之和)。中国古代"以物为质"担保制度的出现,因此被提前到战国时期秦律之中。由此可以窥见早期中国法中担保制度及其在当时社会运行实况之一斑。

The existing theories that treat zhiqian （质钱） in the law of Qin and Han dynasties as ＂deed tax＂ or ＂mortgage＂ （ or guarantee） are questionable and unsubstantiated. The character zhi （质） in zhiqian means ＂mortgage＂, which was a kind of mortgage-backed debt in the laws of Qin and Han dynasties. Taking the recordation of ＂mortgage items to lend money＂ in the book Shuowen （Ex- planations on Chinese Characters） as the basis and by consulting the recordation about zhiqian in the literatures of the Northern and Southern Dynasties period, we can presume that zhiqian in Qin and Han Dynasties originated from the practice of creditors （the feudal officials） taking movable or im- movable properties from debtors as mortgaging for loan so as to prevent the losses caused by debtors who had no capacity or willingness to pay back the loan. The creditors would collect the fund （the capital and interest） paid by debtors upon the expiration of the term of loan. Zhi, as a kind of guar- antee system emerged as early as in the Qin Code in the Warring States Period, provides us with a glimpse of the guarantee system in early Chinese law and its operation.